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Petitioner: MUHAMMADBAIG VS Respondent: MUHAMMAD MANSHA
1988 S C M R 959
1988 S C M R 959
Present: Aslam Riaz Hussain, Actg. C.J.,
Mohammad Afzal Zullah and Javid Iqbal, JJ
MUHAMMAD BAIG‑‑Petitioner
versus
MUHAMMAD MANSHA and 3 others‑‑Respondents
Criminal Petition for Special Leave to Appeal No.195 of 1985, decided on 23rd February, 1988.
(On appeal from the judgment, dated 9‑12‑1984 of the Lahore High Court, Lahore, passed in Criminal Appeal No.113 of 1981).
Penal Code (XLV of 1860)‑‑
‑‑Ss.300 Exception 4, 302 & 304, Part I‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Leave to appeal‑‑Sentence, reduction of‑‑ Application of Exception 4 to S.300, P.P. C.‑‑Conviction under S.302, P.P.C. altered to one under S.304, Part 1, P.P.C. and sentence reduced by High Court in appeal‑‑Accused taking undue advantage of their victims and acting in cruel and unusual manner‑‑Leave to appeal granted to consider plea that conditions for application of Exception 4 to 5.300, P.P.C. having not been satisfied, they were not entitled to lesser punishment.
Q.M. Salim, Senior Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioner.
Walayat Umer Chaudhry, Advocate Supreme Court with Rao Muhammad Yousaf Khan, Advocate‑on‑Record for the State.
Nemo for Respondents Nos.1 to 3.
Date of hearing: 23rd February, 1988.
ORDER
MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought by the complainant side in a case of murder, from Judgment dated 9‑12‑1984 of the Lahore High Court; whereby accused/ respondents' appeal against conviction and sentence under section 302, P.P.C. was, partly allowed and they were convicted and sentenced under section 304, Part I.
2. The learned counsel has pressed this petition against Ghulam Qadir and Ghulam Rasul on a short point; namely, that all the conditions for application of exception IV to Section 300, P.P.C. having not been satisfied, they were not entitled to lesser punishment under section 304, Part I. According to him they took undue advantage A of their victims, the two deceased persons and also acted in cruel and unusual manner. He argued that it amounted to undue advantage, when the said two respondents used knives against two empty‑handed victims. Further, he argued that the nature, number and location of the injuries inflicted by them indicated that they acted in unusual and cruel manner.
3. After hearing the learned counsel, we consider it a fit case to examine; whether the conditions pointed out by the learned counsel were satisfied in this case for application of exception IV to Section 300, P.P.C. and resultant conviction under section 304, Part I, P.P.C. and not under section 302, P.P.C.
4. Leave to appeal is accordingly granted against Ghulam Qadir and Ghulam Rasul only. They shall not be released from jail during the pendency of this matter without the order of this Court.
M.I./M‑398/S Leave granted.